Director of Public Prosecutions v Barton

[2015] VCC 1469

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL BARTON (A PSEUDONYM)

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	14 October 2015
CASE MAY BE CITED AS:	DPP v Barton
MEDIUM NEUTRAL CITATION:	[2015] VCC 1469

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes
For the Accused	Mr M. Sharpley

HER HONOUR: 

1Paul Barton[1], a jury has found you guilty of one charge of rape.  The facts underlying the offending are as follows.

[1] A pseudonym

2You had been in a relationship with the complainant Samantha Rogers[2] for a period of eight or nine months and had been living together for most of that time.  At the time of this rape, which occurred on 17 June 2003, you and she had been separated for a period of about three weeks, she had remained in the house where you had been living in Morwell.  You had moved up to Icy Creek.  The evidence of the complainant was that on a couple of occasions prior, after separating and prior to 17 June, you had contacted her seeking reconciliation and also attending her home in order to collect some of your belongings that were still there. 

[2] A pseudonym

3Her evidence was that at about 5 am she was awoken from her sleep on 17 June 2003 by you knocking at the window.  She asked you what you want and you said you had just come to get some stuff.  She allowed you in and immediately went back to bed.  You followed her into the bedroom, so she got out of the bed, went to the lounge room, put on the heater and went into the kitchen and made a coffee for herself.  While she was making coffee in the kitchen, she noticed a spare key to the front door on the bench, which you had used whilst living together.  She had been using that key since you had moved out. 

4She went to the toilet and then noticed the key was gone.  She had a discussion with you where she accused you of taking the key and you denied it.  She then sat in the lounge room and drank her coffee while you went in and out collecting your belongings.  In that time you asked her whether there was any "Hope for us" and she told you this was definitely not the case.  Eventually there was some argument and she told you to leave.  You said you were going to leave and she followed you to the front door in order to lock it behind you. 

5You began talking to her again so she sat on the arm of a couch in the lounge room which was right next to the front door.  You asked her for a kiss, she replied no. You tried to kiss her and she turned away from you so your kiss landed on her left cheek.  You kept trying to kiss her, she kept turning away and then you grabbed her with both hands on her upper arms and pushed her down onto the couch and lay on top of her.  You tried to kiss her and she tried to push you off.  You asked her, "Why do you hate me so much?"  then said to her, "I'll give you a reason to hate me."  She struggled against you and in that struggle the two of you fell from the couch to the floor.  There you continued to lay on top of her, she continued to struggle and telling you to get off.  She tried to kick her hands and arms free.  She said that you had her arms pinned to her chest as you lay on top of her.

6She managed to get sufficiently free to lie on her side at which stage you hauled her to her feet and over your shoulder and took her to the bedroom.  On the way to the bedroom the complainant continued to struggle and called out to her dog in the hope that it might attack.  She said that you continually told the dog to stay.

7In the bedroom, you tried to shut the bedroom door but she grabbed a dressing down, hanging on the back of the door in the hope that the door would remain open and that the dog would come and help her.  You threw her onto the bed, at some stage on the way having removed her pyjamas pants which were later found by the bed.  You also took off her underpants.  She continued to struggle with you, she got one arm free and punched you to the side of the body. 

8Eventually you said to her, "If you just let me do it, you'll never have to see me again."  She replied, "I'll see you in court."  You then inserted her penis into her vagina and moved it in and out, penetrating her until you ejaculated. 

9As soon as you had done this, you got off her, she stood up and put on her dressing gown and went to the kitchen and grabbed her phone, trying to call her mother who lived nearby.  You followed her, grabbed the phone, threw it into the lounge room, collected your belongings and left. 

10The complainant then rang her mother.  She was sobbing and incoherent and her mother who lived about two blocks away said she would come over.  The complainant and her mother had been in the habit of walking in the mornings and it was the complainant's thought at one stage that her mother would soon arrive.  She then heard the noise at the door and saw you letting yourself in with the key.  You told her that if she told anyone about what had happened that you would make copies of a sex tape that had been taken of the two of you some months previously and would circulate it.  She told you "You better leave, because people are coming." 

11Soon after you left, the complainant's mother arrived.  She collapsed on her mother crying that you had raped her, police were called and informed what had occurred.

12Later that day, the complainant was medically examined by a doctor and a number of injuries were found in her body, mostly in the form of bruising on her arms and legs and 3 x 5 cm bruise on her right buttock.  Swabs were taken and it was ascertained that there was sperm present in her vagina.  Subsequent DNA analysis revealed that there was extremely strong support for the proposition that the sperm came from you.

13You were interviewed by police later that day during which essentially you agreed that sexual intercourse had taken place, although your version was that when you were leaving the house and turned to kiss the complainant goodbye, she returned your kiss and the two of you went to the bedroom where consensual intercourse took place.  You said within a few seconds of you penetrating the complainant she told you to stop and get off, and said that if you did not leave she would call police and that she wanted the sex tape before you left.  You said in the record of interview essentially that you became concerned that you were going to be "Fitted up" by the complainant.  You went to visit a friend Anthony to get advice about this and he told you to wait and see what happened.  You told police that you considered visiting them first.

14In any event ultimately you were committed for trial which was to take place in December 2004.  You failed to appear on that occasion.  It appears that you fled to Queensland where you lived under various names.  You obtained a false driver's licence, you worked for cash and all in all you were not reprehended until 25 July 2015.  In that time, you had been sighted by police but realised you had been and removed yourself.  You lived both in Queensland and in New South Wales and were ultimately apprehended in a small town near Mackay in Queensland. 

15The trial took place here in Morwell court this week, where I have said you pleaded not guilty.  The complainant was cross-examined and ultimately a verdict of guilty was returned.

16I now turn to your personal circumstances.  You are now 42 years of age and have been in custody since 25 July this year.  That time has been difficult as you have been subject to lock-down as a result of the riots at the Melbourne Remand Centre where you were held.  Your counsel informed me that you had good work history, you left school after Year 10 at Macleod Technical School.  You lived with your mother in Heidelberg after your parents divorced when you were nine.  You undertook an apprenticeship as a diesel mechanic but were then retrenched due to the recession affecting your employer's business.  You immediately obtained work as a trade assistant to a boiler maker and then went to Queensland where you worked in rural maintenance. 

17You returned to Victoria due to family by which stage your mother had moved to the Shepparton area and you followed her up there.  Whilst in Shepparton you worked for a time as a boiler maker and then you moved from Shepparton to the Latrobe Valley again to follow your mother who moved to the Gippsland town of Trafalgar.

18You then began your own business as a truck driver which you undertook for some years until work fell off and then sought employment as a truck driver in Warrigal where you worked for some years. You then took a job with Leesons as a truck driver, which occupation you held at the time of your offending in 2003.

19After you were charged and fled to Queensland, you worked periodically.  Before going to Queensland you worked for an employer in Sydney but after decamping to Queensland in late 2004, you worked mainly as a handyman and a maintenance worker in rural areas.  For the last four years of your time in Queensland you worked for a particular employer Joe Borg. 

20You have had a number of  relationships.  You formed a relationship whilst you were in Shepparton which lasted for five years and of which two children were born, they are now 20 and 16, and you continue to have contact with them.  Indeed at the time of your apprehension and arrest, you were expecting your daughter to visit you.  You then had a relationship with the complainant and whilst in Queensland had a relationship which lasted for six or seven years before you separated.

21You have two prior convictions.  They are fairly old, it appears there has been no subsequent offending.  In 2001 you were fined on charges of failing to answer bail, theft, wilful damage, breaching an intervention order, destroying property and assault with a weapon.  Those charges apparently arose in relation to a disagreement with your former partner, your then former partner.  In 2002, you were fined for recklessly causing injury, which offending arose in the context of a pub fight.

22It was submitted to me that the offending for which you were convicted by a jury falls into the lower spectrum of offending of that kind.  The prosecution disagreed.  I was referred to a number of other cases with varying fact scenarios and indeed the charge of rape can involve a number of different scenarios.

23In my view, the offending that you engaged in against the complainant on this occasion was of moderate seriousness within the range.  Certainly, I accept that it was not premeditated and that it was a spontaneous action by you.  Nevertheless, you continued against the very clear and vehement objections of Ms Rogers to manhandle her, to force sexual intercourse upon her, you ejaculated inside her, you were not wearing a condom, and this I regard as an aggravating feature obviously because of the dangers of pregnancy or sexually transmitted disease.

24In my view, although it was not urged upon me, the fact that you absconded, that you did not turn up for trial, that you remained at large for more than a decade is an aggravating feature.  Not only did you seek to escape the consequences of your own offending, it meant that the complainant lived in a state of suspense for over a decade.  Becoming the victim of rape is always a horrendous and traumatic experience for any woman.  Sometimes however the legal resolution of it can bring some resolution to the inevitable aftermath, emotional and damage that is caused.  This complainant had no such comfort.

25Not only did she have to live in the fear that you were at large for more than a decade, she then had to relive traumatic events which had occurred more than a decade before and which it she seems she had sought understandably to put behind her.  In her victim impact statement she stated that during and immediately after the crime she felt scared and hurt, she said her whole body ached for days after this incident as a result of the struggles that she put against you.  Indeed I noted that 13 different injuries were found on her body on medical investigation.

26She stated that a week after the crime she quit her job because of her distress as a result of being raped.  She had trouble going out into the public, she had trouble completing everyday tasks.  She said for three years after the crime she had abnormal pap smear results and ultimately had to have her cervix cauterised.  She was advised by her doctor that this may have been a result of the rape you inflicted upon her.

27She said she could not return to her home as she was scared to be alone and eventually moved in with her mother.  She saw a counsellor for about two years to help her cope with depression and anxiety which are inevitable consequences visited upon persons who have been raped, as the complainant was raped by you. 

28She noted that she still suffers depression and anxiety and does not feel comfortable being alone.  She cannot bear anything covering her head or face or substantial weight on her due to the feelings of being overpowered and out of control that experienced during your rape.  She stated unsurprisingly that her anxiety had increased since the trial and she had started seeing a counsellor again.  She has also had trouble sleeping and eating again since the trial.

29When I say that your offending, Mr Barton, fell into the moderate category that does not, by any means, indicate that your offending was anything but serious.  Rape of a woman is always a most serious crime.  It has a dreadful impact upon victims and as it can be seen more than ten years after this crime, your victim continues to suffer the emotional aftermath of the violence that you inflicted upon her.  Inevitably, persons such as yourself who are convicted of rape face a gaol sentence and this I intend to impose.

30You have shown no remorse whatsoever for your offending.  You made denials in your record of interview.  You escaped or evaded the consequences of your actions, evaded the legal ramifications of your actions for a very extended period of time.  On you return, you continued to deny the offending and the complainant was subjected to the trauma of giving evidence at a trial and being cross-examined.

31I do not intend to recite in detail the authorities that were urged upon me by your counsel.  In short compass the case of Short 2006 VSCA 120, the case of Alexander 2007 VSCA 178 and the case of Rowley 2007 VSCA 94.  An old case of McGinn 1982, Victoria Reports 53 was urged upon me but this does not have a relevance to the sentencing exercise before me due to its age, a change in attitude as evidenced by the numerous legislative in relation to sexual offences that have occurred since and in any event at that time the maximum penalty for rape was five years less than it is now.  But rape is, as I have said, an extremely serious crime as evidenced by the fact that it contains one of the highest maximum penalties in the sentencing calendar, that is 25 years.

32In my view there are significant differences in each of the cases cited to me.  In Short, for example, there was an extraordinary issue of delay.  Both Rowley and Short were pleas of guilty and in cases such as this very significant discounts are given because of the rarity of such pleas and in my view notwithstanding the fact that both cases contain aspects of violence, not contained in this particular case, the factual differences of each mean that they cannot be properly compared to the sentencing exercise I must now undertake.

33In the case of Alexander, the issue of double jeopardy was a significant feature for the court.  That is, Mr Alexander had been convicted on trial, that trial was then the subject of a successful appeal.  A second trial was then undertaken with a much reduced presentment and the result was much affected by factors in my view which are not present in this case.

34I have had recourse to the sentencing statistics in relation to rape.  The average sentence imposed for charge of rape in 2011 and 2012 was four years and six months.  As I have said, in my view, whilst this case might fall at the moderate end of the range, it is by no means at the bottom end of the range.  It involved a sustained application of force in the face of vigorous protest.  There was no aspect of provocation that could in any way be relied upon.  It involved penetration and unprotected ejaculation.  It involved an evasion by you of more than a decade which I regard as an aggravating feature in this case.

35I therefore sentence you as follows.  You could stand up please?  For the charge of rape you are sentenced to five years' imprisonment, I order that you serve minimum term of three years before becoming eligible for parole.  Thank you, have a seat Mr Barton.

36MR SHARPLEY:  As Your Honour pleases.

37HER HONOUR:  I should also add that I was handed several references, two from former employers which spoke of your qualities as a worker which are clearly good.  You have a good employment history.  I also received a reference from a young man who you were obviously of great assistance to when he moved to Queensland.  Certainly, those persons who did write the reference said that they were at the least surprised to hear of your involvement in this offending.  The fact that you are a good worker may, in my view, has far less relevance to this sort of offending that may otherwise be the case where other charges are faced by an accused person.  Yes thank you.

38MS PARKES:  Your Honour there's the 82 days' pre-sentence detention and the forensic sample.

39HER HONOUR:  I direct that 82 days of this sentence have already been served by way of pre-sentence detention.  Now have we got the - the question of the sex offender register has arisen, surprisingly in my view, where a person is charged with adult rape, the need of placing of a person on a sex offenders register is not mandatory.  In view of the fact that more than a decade has elapsed since his offending, and you have appeared not to have engaged in this offending since, I do not propose to place you on the sex offenders register.  I am ordering that police take a sample from you which is going to be basically a saliva swab Mr Barton, and I need to advise you that should you resist giving this sample, police are entitled to use reasonable force in obtaining it.  Thank you.  Yes thank you, we will adjourn to 9.30 tomorrow morning, thank you.

‑ ‑ ‑